WISCONSIN LEGISLATIVE COUNCIL
Terry C. Anderson, Director
Laura D. Rose, Deputy Director
TO:
REPRESENTATIVE JOE SANFELIPPO
FROM: David Moore, Staff Attorney
RE:
Whether Repealing Wisconsin’s “Complete Streets” Statute Would Jeopardize
Wisconsin’s Receipt of Federal Highway Aid
DATE:
December 4, 2013
You asked whether repealing s. 84.01 (35), Stats., would jeopardize the state’s ability to
receive federal highway aid. This statute, often referred to as the “complete streets” statute,
directs the Department of Transportation (WisDOT) to “ensure that bikeways and pedestrian
ways are established in all new highway construction and reconstruction projects funded in
whole or in part from state or federal funds.” Although highway projects requiring federal
approval would remain subject to federal requirements concerning the consideration of bicycle
transportation facilities and pedestrian walkways, s. 84.01 (35), Stats., could be repealed
without putting federal highway aid to the state at risk.
FEDERAL LAW
Federal law, in general, requires the “due consideration” of bicycles and pedestrians in
highway reconstruction and reconstruction projects. These requirements are contained in
federal statutes, administrative rules, and a U.S. Department of Transportation (U.S. DOT)
policy statement.
Statutes
The applicable federal statute provides as follows:
(1) In general. – Bicyclists and pedestrians shall be given due
consideration in the comprehensive transportation plans
developed by each metropolitan planning organization and
State in accordance with sections 134 and 135, respectively.
Bicycle transportation facilities and pedestrian walkways shall
be considered, where appropriate, in conjunction with all new
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-2construction and reconstruction of transportation facilities,
except where bicycle and pedestrian use are not permitted.
(2) Safety considerations. – Transportation plans and projects shall
provide due consideration for safety and contiguous routes for
bicyclists and pedestrians. Safety considerations shall include
the installation, where appropriate, and maintenance of audible
traffic signals and audible signs at street crossings.
[23 U.S.C. s. 217 (g).]
Related federal statutes also authorize the use of federal funding for bicycle
transportation and pedestrian accommodations, and require that a portion of federal funds
allocated to states be used for certain pedestrian and bicycle purposes. Where the statutes
authorize the use of federal funding for bicycle and pedestrian accommodations, the statutory
language is permissive; for example, “a State may obligate [certain] funds apportioned to
it...for construction of pedestrian walkways and bicycle transportation facilities and for
carrying out nonconstruction projects related to safe bicycle use.” [23 U.S.C. s. 217 (emphasis
added).] Where a state’s use of federal funds is conditioned on the state using a portion of the
funds for bicycle and pedestrian purposes, the statutory language is mandatory: “Each State
receiving an apportionment under sections 104 (b) (s) and 104 (b) (3) of this title shall use such
amount of the apportionment as may be necessary to fund in the State department of
transportation a position of bicycle and pedestrian coordinator....” [23 U.S.C. s. 217 (d)
(emphasis added).]
Rules
Rules promulgated by U.S. DOT declare as federal policy that “[t]he safe
accommodation of pedestrians and bicyclists should be given full consideration during the
development of Federal-aid highway projects, and during the construction of such projects.”
The rules then specify that federal funds are available to carry out this obligation and set forth
criteria for bicycle and pedestrian projects constructed with federal funds. [23 C.F.R. ss. 652.5 –
659.13.]
Policy Statement
U.S. DOT has issued a policy statement which asserts, in relevant part, that bicycle and
pedestrian accommodations be included on all new construction and reconstruction projects
involving federal funds, except where one of the following applies:
1. Bicyclists are prohibited by law from using the roadway.
2. The cost of establishing bikeways would be excessively disproportionate to the need
or probable use. “Excessively disproportionate” is defined by the Federal Highway
Administration (FHWA) as exceeding 20% of the larger transportation project.
3. Sparsity of population or other factors indicate an absence of need.
-3U.S. DOT’s stated purpose in developing the policy statement is its “hope[] that public
agencies, professional associations, advocacy groups, and others adopt this approach as a way
of committing themselves to integrating bicycling and walking into the transportation
mainstream.”1 This policy was recently reaffirmed in 2010. 2
STATE LAW
The 2009-2011 Wisconsin Biennial Budget Act created s. 84.01 (35), Stats., which requires
WisDOT to “ensure that bikeways and pedestrian ways are established in all new highway
construction and reconstruction3 projects funded in whole or in part from state or federal
funds appropriated under s. 20.395 or 20.866” unless one of the following applies:
1. Bicyclists or pedestrians are prohibited by law from using the highway that is the
subject of the project.
2. The cost of establishing bikeways or pedestrian ways would be excessively
disproportionate to the need or probable use of the bikeways or pedestrian ways.
State law uses the same definition of “excessively disproportionate” as the FHWA.
3. Establishing bikeways or pedestrian ways would have excessive negative impacts in
a constrained environment.
4. There is an absence of need for the bikeways or pedestrian ways, as indicated by
sparsity of population, traffic volume, or other factors.
5. The community where pedestrian ways are to be located refuses to accept an
agreement to maintain them.
[s. 84.01 (35) (c), Stats.]
These exceptions largely mirror the exceptions in the federal policy statement.
Wisconsin’s law, however, contains two additional exceptions not included in the federal
policy statement.
Accommodating Bicycle and Pedestrian Travel:
A Recommended Approach (available at:
http://www.fhwa.dot.gov/environment/bicycle_pedestrian/guidance/design_guidance/design.cfm).
2 U.S. Department of Transportation Policy Statement on Bicycle and Pedestrian Accommodation
Regulations and Recommendations, signed on March 11, 2010 and announced March 15, 2010, available at:
http://www.fhwa.dot.gov/environment/bicycle_pedestrian/overview/policy_accom.cfm.
3
“Reconstruction” means one of the following:
1
1.
Total rebuilding of an existing highway to improve maintainability, safety, geometrics and traffic
service. It is accomplished basically on existing alignment, and major elements may include
flattening of hills and grades, improvement of curves, widening of the roadbed, and elimination
or shielding of roadside obstacles. Normally, reconstruction will require additional property
acquisition.
2.
Pavement replacement having a design life of 15 years or more on an existing highway.
[s. 84.013 (1) (c), Stats., and s. Trans 75.01 (6), Wis. Adm. Code.]
-4WisDOT subsequently promulgated rules to provide additional detail on how it carries
out its obligation to ensure bikeways and pedestrian ways are included in all applicable
projects. These rules are contained in ch. Trans 75, Wis. Adm. Code.
DISCUSSION
You asked whether repealing s. 84.01 (35), Stats., and directing WisDOT to repeal or
amend ch. Trans 75 accordingly, would jeopardize the state’s ability to receive federal
highway aid. Although repealing s. 84.01 (35), Stats., would not relieve the state of its
obligation to follow federal law with respect to projects receiving federal funding, s. 84.01 (35),
Stats., could be repealed without directly impacting the state’s receipt of federal highway aid.
As noted above, federal law requires that a portion of federal funds allocated to states
be used for certain bicycle and pedestrian purposes; e.g., establishing a state bicycle and
pedestrian coordinator. But the general directive to give bicycles and pedestrians “due
consideration” in federal-aid construction and reconstruction projects does not condition the
receipt of federal highway aid in general on whether a state has its own law requiring the
inclusion of bicycle and pedestrian facilities in highway projects.
Further, although s. 84.01 (35), Stats., is reasonably consistent with U.S. DOT’s policy
statement, it arguably imposes obligations not required by federal law. For example, federal
law requires that bicycles and pedestrians be given “due consideration” in highway
construction and reconstruction projects. “Due consideration” is a relatively vague standard
compared with the specificity of Wisconsin’s requirement that WisDOT “ensure that bikeways
and pedestrian ways are established.” Additionally, the requirement in s. 84.01 (35), Stats.,
applies to projects funded in whole or in part with state or federal funds, whereas federal law
only applies to projects receiving federal funding.
FHWA staff consulted for the preparation of this memorandum confirmed that federal
law does not require a state to have its own law requiring the inclusion of bicycle and
pedestrian accommodations in highway projects to remain eligible for federal aid. According
to FHWA staff, FHWA approves funding on a project-by-project basis, and would therefore
apply federal policy regarding bicycle and pedestrian accommodations to each project
receiving federal highway aid. FHWA staff stated that WisDOT may generally allocate the
state’s federal highway aid to whichever projects it chooses; FHWA then either approves or
disapproves the use of the funds for that project, depending on whether the project meets
federal requirements. In the event FHWA determined that appropriate consideration of
bicycles and pedestrians was not given with respect to a particular project, federal approval to
use federal funds for that project would be withdrawn. The state, however, would remain free
to use the funds that would have been used for the disapproved project for projects that meet
federal requirements.
If you have any questions, please feel free to contact me directly at the Legislative
Council staff offices.
DM:jal